Opinion
10-P-1416
10-24-2011
ADOPTION OF LENA.
NOTICE: Decisions issued by the Appeals Court pursuant to its rule 1:28 are primarily addressed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, rule 1:28 decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28, issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The father appeals from a decree of the Juvenile Court terminating his parental rights to his daughter.
The mother died on January 18, 2009.
1. Subsidiary findings. The father first argues that the judge's subsidiary findings are unsupported by the evidence. We disagree. The challenged findings regarding the severity of the father's drug abuse, the extent of his violent behavior toward the child and her mother, and the failure to complete his service plan tasks are amply supported by the record. We rely upon the arguments and authorities on pages twenty-three through twenty-eight of the brief of the Department of Children and Families (department).
2. Ultimate conclusions. The determination of parental unfitness requires consideration of a parent's character, temperament, conduct, mental stability, and capacity to provide for the child in the same context with the child's particular needs, affection, and age. Adoption of Mary, 414 Mass. 705, 711 (1993). The judge carefully and reliably found that the father had a history of domestic violence against both the child and her mother, and that the father also had a history of drug abuse and had exposed the child to drugs, drug use, and hypodermic needles. The father was incarcerated at the time of trial, and did not have a plan as to where he would live or work upon his eventual release. A comparison of these parental characteristics (or lack thereof) to the child's needs amply demonstrates that the father lacks parental fitness.
The judge's findings that the father had been physically, verbally, and emotionally abusive of both the mother and child were supported by the evidence. The judge properly relied upon the patterns of abuse and neglect in reaching his ultimate determinations. Clearly, the father's violent behavior toward the child and her exposure to the father's violent behavior toward the child's mother is compelling evidence of the father's parental unfitness. See Custody of Vaughn, 422 Mass. 590, 595 (1996).
Finally, the judge appropriately found that the father's failure to cooperate with the department's attempts to improve his parenting was further evidence of parental unfitness. See Adoption of Carla, 416 Mass. 510, 519 (1993).
The combined factual findings including, but not limited to, evidence of the father's drug abuse, violent behavior, criminal history, and lack of cooperation, provide clear and convincing evidence that the father is not fit to parent this child.
The factual conclusions relied on by the judge in the analysis of statutory factors, and upon which the judge based his best interests determination, included reference to the following evidence, which is fully discussed in the department's brief and in the child's brief: (1) the father's lengthy history of substance abuse, domestic violence, and incarceration; (2) the child's lack of contact with the father for almost one year by the end of the trial, and her expressed fear of the father; (3) the father's inability to provide a safe or stable home for the child; and (4) the father's failure to utilize the services offered by the department to correct the relevant circumstances.
The judge's ultimate conclusion has not been shown to be erroneous. In some respects it can be described as inescapable.
3. Suspension of visitation. A trial had been scheduled for October, 2009. After the scheduling, but prior to trial (on August 21, 2009), the father filed a motion to compel visits with the child. On September 30, 2009, a judge heard argument on the father's motion to compel visits and then took it under advisement. The next day, October 1, 2009, the judge ordered 'a brief in camera meeting with the child to ascertain her wishes concerning visitation with [the father].' Accordingly, the judge met with the child (who was nine years old at the time) in camera, on October 5, 2009, to inquire whether she wished to visit with her father. Three days later the judge denied the father's motion to compel visits and suspended visits between the father and the child.
In this appeal the father argues that the judge's orders with respect to the father's visitation constitute reversible error. We are not persuaded. We have reviewed the judge's 'Findings and Rulings Re: In Camera Examination of Child,' and conclude that the judge's findings are supported and rulings clearly appropriate. There was no error.
Accordingly, the Juvenile Court's decree is affirmed.
So ordered.
By the Court (Mills, Smith & Wolohojian, JJ.),